Citation Nr: 1301531
Decision Date: 01/15/13 Archive Date: 01/23/13
DOCKET NO. 09-12 498 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Winston-Salem, North Carolina
THE ISSUES
1. Entitlement to an increased compensable evaluation for the service-connected left foot plantar fasciitis prior to February 19, 2009.
2. Entitlement to an increased evaluation in excess of 10 percent for the service-connected left foot plantar fasciitis, beginning on February 19, 2009.
3. Entitlement to a total evaluation based upon individual unemployability by reason of service-connected disability (TDIU).
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
K. Osegueda, Associate Counsel
INTRODUCTION
The Veteran served on active duty from July 2005 to June 2006.
These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the RO.
Along with the claims currently on appeal, the issues of an increased compensable evaluation for the service-connected right foot plantar fasciitis with metatarsalgia and a stress fracture of the third metatarsal was included in the March 2009 Statement of the Case (SOC).
The VA Form 9, Appeal to Board, received in April 2009, indicated that the Veteran only desired to appeal the claim of an increased evaluation for the service-connected left foot plantar fasciitis.
A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.
The issues of an increased rating in excess of 10 percent for the service-connected left foot plantar fasciitis and entitlement to a TDIU rating are being remanded to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if further action is required on her part.
FINDING OF FACT
The service-connected left foot disability picture is shown to have been productive of a level of functional impairment due to pain that more nearly approximated that of a moderate muscle injury prior to February 19, 2009.
CONCLUSION OF LAW
Prior to February 19, 2009, the criteria for the assignment of an increased rating of 10 percent, but no higher, for the service-connected left foot disability were met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a including Diagnostic Codes 5280, 5284, and 4.73 including Diagnostic Code 5310 (2012).
REASONS AND BASES FOR FINDING AND CONCLUSION
Duty to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).
To the extent that the action taken hereinbelow is favorable to the Veteran, further discussion of VCAA is not required at this time.
Merits of the Claim
Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule). 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes identify the various disabilities.
In considering the severity of a disability it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2012). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).
Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999).
Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.
The Veteran contends that her left foot disability manifested symptomatology that warrants a compensable rating prior to February 19, 2009.
After a careful review of the evidence of record, the Board finds that the service-connected disability picture more nearly resembles the criteria for a rating of 10 percent.
Under 38 C.F.R. § 4.40, disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like.
The Veteran's left foot disability has been rated under Diagnostic Code 6399-5310.
When an unlisted disease or injury is encountered, it will be rated by analogy under a diagnostic code built up using the first 2 digits from that part of the Rating Schedule most closely identifying the body part or system affected and by using "99" for the last 2 digits. Hyphenated Diagnostic Codes will be used where a disability is rated on the basis of its residuals. 38 C.F.R. § 4.27.
Here, the RO evaluated the service-connected left foot plantar fasciitis by analogy to the criteria for a muscle injury of the foot and leg. See 38 C.F.R. § 4.73, Diagnostic Code 5310.
Disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe, or severe. 38 C.F.R. § 4.56. A "slight" muscle disability contemplates a simple wound of the muscle without debridement or infection; a service department record of a superficial wound with brief treatment and return to duty; healing with good functional results; and no cardinal signs or symptoms of muscle disability. Objectively, there is a minimal scar; no evidence of fascial defect, atrophy, or impaired tonus; and no impairment of function or metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56(d)(1).
A "moderate" muscle disability contemplates a through and through or deep penetrating wound of short track from a single bullet, small shell, or shrapnel fragment, without the explosive effect of a high velocity missile, residuals of debridement, or prolonged infection; a service department record or other evidence of in-service treatment for the wound; and a record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Objectively, there are entrance and if present, exit scars that are small or linear, indicating a short track of missile through muscle tissue; and some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d)(2).
A "moderately severe" muscle disability contemplates a through and through or deep penetrating wound by a small high velocity missile, or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring; a service department record or other evidence showing hospitalization for a prolonged period for the wound; a record of consistent complaint of cardinal signs and symptoms of muscle disability; and, if present, evidence of inability to keep up with work requirements. Objectively, there are entrance and (if present) exit scars indicating track of missile through one or more muscle groups; indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscle compared with the sound side; and tests of strength and endurance compared with the sound side demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3).
A "severe" muscle disability contemplates a through and through or deep penetrating wound due to a high velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding, and scarring; a service department record or other evidence showing hospitalization for a prolonged period for treatment of the wound; a record of consistent complaint of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries; and, if present, evidence of inability to keep up with work requirements. Objectively, there are ragged, depressed, and adherent scars indicating wide damage to muscle groups in the missile track; palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in the wound area; muscles swell and harden abnormally in contraction; and tests of strength, endurance, or coordinated movements indicate severe impairment of function when compared with the uninjured side.
If present, the following are also signs of "severe" muscle disability: (a) x-ray evidence of minute, multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; (b) adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum, or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle;(c) diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; (d) visible or measurable atrophy; (e) adaptive contraction of an opposing group of muscles; (f) atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle;
(g) induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56(d)(4).
When evaluating damage to muscle groups, disability pictures are based on the cardinal signs and symptoms of muscle disability, such as loss of power, weakness, lowered threshold of fatigue, fatigue-pain, and impairment of coordination and uncertainty of movement. 38 C.F.R. § 4.56.
A muscle injury rating will not be combined with a peripheral nerve paralysis rating of the same body part, unless the injuries affect entirely different functions. For compensable muscle group injuries which are in the same anatomical region, but do not act on the same joint, the evaluation for the most severely injured muscle group will be increased by one level and used as the combined evaluation for the affected muscle groups. 38 C.F.R. § 4.55.
For informational and rating purposes, the skeletal muscles of the body are divided into 23 muscle groups in five (5) anatomical regions: six (6) muscle groups for the shoulder girdle and arm (Diagnostic Codes 5301 through 5306); three (3) muscle groups for the forearm and hand (Diagnostic Codes 5307 through 5309); three (3) muscle groups for the foot and leg (Diagnostic Codes 5310 through 5312); six (6) muscle groups for the pelvic girdle and thigh (Diagnostic Codes 5313 through 5318); and five (5) muscle groups for the torso and neck (Diagnostic Codes 5319 through 5323). 38 C.F.R. § 4.55(b).
Muscle Group X involves movements of the forefoot and toes; propulsion thrust in walking and intrinsic muscles of the foot: plantar: (1) flexor digitorum brevis; (2) abductor hallucis; (3) abductor digiti minimi; (4) quadratus plantae; (5) lumbricales; (6) flexor hallucis brevis; (7) adductor hallucis; (8) flexor or digiti minimi brevis; (9) dorsal and plantar interossei, as well as other important plantar structures: plantar aponeurosis, long plantar and calcaneonavicular ligament, tendons of posterior tibial, peroneus longus, and long flexors of the great and little toes. 38 C.F.R. § 4.73, Diagnostic Code 5310.
Slight muscle disability of the plantar muscles warrants a non-compensable rating, while moderate muscle disability of the plantar muscles warrants a 10 percent rating. Moderately severe muscle disability of the plantar muscles warrants a 20 percent rating, and severe muscle disability of the plantar muscles warrants a 30 percent rating. Id.
Diagnostic Code 5310 also contemplates ratings for dorsal muscle disabilities. The muscles of the dorsal aspect of the foot consist of (1) the extensor hallucis brevis and (2) the extensor digitorium brevis. Other important dorsal structures include the cruciate, crural, deltoid, and other ligaments, as well as the tendons of long extensors of the toes and peronei muscles. Id.
Slight disability of the dorsal muscles warrants a non-compensable rating, while moderate muscle disability and moderately severe muscle disability of the dorsal muscles warrants a 10 percent rating. Severe muscle disability of the dorsal muscles warrants a 20 percent rating. Id.
An explanatory note to Diagnostic Code 5310 also directs the rater to assign a minimum 10 percent rating for a through-and-through wound of the foot. Id.
The Veteran underwent a VA examination in November 2007. She reported that she had moderate, daily pain in the plantar forefoot of her left foot. She also indicated that she had tingling foot pain at night which made it difficult for her to sleep.
During the examination, the Veteran reported that she was unemployed due to pregnancy, but she had worked as a veterinary technician in the past. She stated that her feet would hurt with standing and walking all day while she was working. She indicated that her left foot pain had no effect on her activities of daily living, but walking one mile and standing for a few hours aggravated her foot pain.
The Veteran described pain in the bottom of her left forefoot and heel. She felt heat throughout her entire left foot and had fatigability and lack of endurance in her dorsal toes. She denied swelling, redness, stiffness and weakness. The examiner noted that there were no flare-ups of foot joint disease.
A physical examination showed no evidence of abnormal weight bearing. There was no objective evidence of painful motion, swelling, instability, weakness, hammertoes, hallux valgus or rigidus, skin or vascular abnormality, pes cavus, malunion or nonunion of the tarsal or metatarsal bones, or pain on manipulation. There was no evidence of flatfoot, malalignment, or pronation.
The examiner noted that there was objective evidence of tenderness in the dorsum forefoot and plantar heel of the left foot.
In an April 2008 Notice of Disagreement, the Veteran reported that her foot disability caused pain and prevented her from accomplishing everyday tasks. She indicated that standing for long periods of time became "almost impossible" and that she was "barely able to walk" following a day of prolonged standing or walking. She also noted that she was unable to run, jump, or complete any exercises involving her lower extremities.
The Veteran underwent another VA examination in February 2009. She reported that the tops and bottoms of her feet were sore when walking and that she had a burning, tingling feeling in her toes. She indicated that the sensation worsened with walking and standing. She was able to walk for one mile and stand for approximately one hour. She indicated that sitting relieved her foot pain.
The Veteran reported that she had flare-ups of pain approximately five times per week. She had orthotics in her shoes which helped with the pain "a little bit." She stated that her foot pain did not affect her activities of daily living, but she had difficulty standing when she last worked as a veterinary technician in April 2007.
An examination of the left foot showed no tenderness under the metatarsal heads, over the top of her foot, or in the plantar fascia insertion. She had full range of motion of her toes. There was no evidence of hammertoes, high arch, clawfoot, flatfoot, or Achilles tendon tenderness. She had hallux valgus of 10 degrees on the left foot.
Based upon the evidence of record, the Veteran's left foot disability is more appropriately evaluated as 10 percent disabling prior to February 19, 2009.
Under Diagnostic Code 5310, a 10 percent evaluation is appropriate for moderate muscle disability of the plantar muscles.
The Veteran demonstrated pain and tenderness in the dorsum forefoot and plantar heel of the left foot during examinations in November 2007 and February 2009. She also described difficulty standing and walking for prolonged periods.
A 10 percent evaluation takes into consideration and incorporates the functional loss due to pain, including pain during flare-ups, which more closely approximates a moderate muscle disability of the plantar muscles of the left foot. Therefore, a schedular evaluation of 10 percent is warranted. 38 C.F.R. § 4.73, Diagnostic Code 5310.
The Board also has considered the other diagnostic criteria pertaining to the foot.
Diagnostic Code 5284 is also an appropriate code because it pertains to a foot injury that is not provided with a specific Diagnostic Code for evaluating disabilities of the foot. See 38 C.F.R. § 4.71a, Diagnostic Code 5284.
However, an evaluation under Diagnostic Code 5284 would not result in a higher rating for the Veteran's left foot disability prior to February 19, 2009.
There is no flatfoot, weak foot, claw foot, metatarsalgia, hallux rigidus, hammer toe, or malunion or nonunion of the tarsal or metatarsal bones. Thus, Diagnostic Codes 5276 to 5283 are not for application. See 38 C.F.R. § 4.71a, Diagnostic Codes 5276 to 5283, not including Diagnostic Code 5280.
Therefore, a 10 percent rating is warranted for the service-connected left foot disability, prior to February 19, 2009, in accordance with Diagnostic Code 5310.
Extraschedular Rating
The Board has also considered whether referral for extraschedular consideration is warranted, but finds that it is not. The determination of whether a claimant is entitled to an extraschedular rating is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008).
The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id.
If it is determined that this is so, the second step of the inquiry requires a determination of "whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization. Id. at 116.
Finally, if the first two steps of the inquiry have been satisfied, the third step requires referral of the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extraschedular rating is warranted. Id.
With respect to the initial inquiry posed by Thun, the Board finds that the Veteran's disability level and symptomatology are adequately described by the established rating criteria.
Without evidence reflecting that the Veteran's disability picture is so "exceptional or unusual," such that the available criteria for his disabilities are inadequate, referral for a determination of whether the Veteran's disability picture requires the assignment of an extraschedular rating is not warranted. Thun, supra.
ORDER
An increased rating of 10 percent, but no more for the service-connected left foot disability prior to February 19, 2009 is granted, subject to the regulation controlling disbursement of VA monetary benefits.
REMAND
A January 2009 VA report of contact indicates that the Veteran was treated at the Durham VA Medical Center (VAMC) beginning in February 2008. A review of the claims file and the Veteran's Virtual VA electronic record shows that the Durham VAMC have not been associated with the record.
VA has a duty to obtain all relevant VA and Governmental records prior to adjudication of a claim. 38 U.S.C.A § 5103A(c)(3) (West 2002); see Bell v. Derwinski, 2 Vet. App. 611 (1992) (observing that any VA treatment records that have been generated up to and including the date of the Board's decision, whether or not filed in the claims file, are in the constructive possession of the Board and must be considered); see also 38 C.F.R. § 3.159(c)(2).
VA's duty to assist requires an examination be provided in certain circumstances. 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159(c)(4). The Veteran is shown to have last been examined for rating purposes in February 2009, nearly four years ago.
In light of this lapse in time, the Board finds that he should be afforded a more contemporaneous VA examination to determine the current severity of the service-connected left foot disability. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (in which the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); VAOPGCPREC 11-95 (April 7, 1995).
In addition, the Court has held that, if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009).
In this case, in the November 2007 VA examination, the Veteran stated that she was an unemployed veterinary technician. In the April 2008 Notice of Disagreement and an April 2010 statement, she indicated that she was unable to work as a veterinary technician, in part, due to her service-connected left foot disability.
In the April 2010 statement, she wrote, "[she could not] even be a veterinary technician because [she could not] stand for more than an hour at a time. No one [would] hire me if I [could not] make it through a surgery on an animal. I have tried to work in the career the [A]rmy trained me to do. I was in pain every minute of the day until I quit."
Therefore, the RO should develop a claim for TDIU rating in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009).
Accordingly, these remaining matters are REMANDED to the RO for the following action:
1. The RO should take appropriate steps to contact the Veteran and ask that she identify the names and addresses of all health care providers who have treated her for the service-connected left foot disability for the period of the appeal. The Board is particularly interested in records of pertinent treatment that the Veteran may have received at the Durham VAMC from February 2008 to present.
After procuring authorization from the Veteran for release of all identified records, as appropriate, the RO should attempt to obtain such records. All efforts to obtain such records should be documented in the claims folder. All available records should be associated with the Veteran's VA claims folder
The Veteran also should be notified that she may submit medical evidence or treatment records to support his claims for an increased evaluation for the service-connected left foot disability.
2. After this development has been completed, the RO should schedule the Veteran for a VA examination to determine the severity of the service-connected left foot disability.
In conjunction with the examination, the examiner must review the entire claims file, including a complete copy of this remand. The examiner should characterize the findings in terms of the applicable diagnostic codes. Any necessary diagnostic tests should be completed.
The examiner should set forth in the examination report all examination findings and the complete rationale for any conclusions reached. The examiner also should identify the extent to which the Veteran's ability to work is impaired by her left foot disability.
3. The Veteran must be given adequate notice of the date and place of any requested examinations. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on her claim. 38 C.F.R. § 3.655.
4. The RO should take appropriate steps to contact the Veteran in order to have address whether she is seeking a TDIU rating under the provisions of 38 C.F.R. § 4.16, based on impairment attributable to her service-connected disabilities, in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). In so doing, the RO may decide to pursue further development of the Veteran's employment history or to obtain additional medical evidence or medical opinion, as is deemed necessary.
5. After completing all indicated development, and any additional notification and/or development deemed warranted, the RO should readjudicate any claim remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO must furnish the Veteran and her representative an appropriate SSOC and afford them a reasonable opportunity for response.
Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
______________________________________________
STEPHEN L. WILKINS
Veterans Law Judge,
Board of Veterans' Appeals
Department of Veterans Affairs